Immigration Bill

Baroness Smith of Basildon Excerpts

Wednesday 19th March 2014 Lords Chamber

Moved by

[Baroness Smith of Basildon]

79F: Clause 62, page 50, line 3, at end insert—
“( ) Any power of the Secretary of State to make regulations under this section is exercisable by statutory instrument, not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

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[Baroness Smith of Basildon (Lab)]

My Lords, I hope it is nothing I am about to say that is encouraging a mass exodus from the Chamber at this point.

We now come to a group of amendments that deal mainly with the transitional and consequential provisions. Our amendments come from some of the recommendations of the 22nd report of the Delegated Powers and Regulatory Reform Committee, and I turn to them first. Amendment 79F comes from a recommendation of the committee. Clause 62 deals with fees to be charged in connection with immigration and nationality. This would provide for any order made under this clause to be subject to the affirmative procedure. It is a probing amendment to draw the House’s attention to the committee’s remarks and seek information from the Minister.

The provisions in the clause replace the existing provisions in Section 51 of the Immigration, Asylum and Nationality Act 2006. However, as the committee points out, the structure of the new provisions is different. For absolute clarity, I shall quote from the committee, which states:

“Under section 51, the matters in respect of which fees may be charged are required to be set out in an affirmative order with the amount of a fee to be specified in regulations. Fees regulations under section 51 are subject to the negative procedure unless the amount specified exceeds the cost of the service to which it relates, in which case it is subject to the affirmative procedure. Under clause 62, the matters in respect of which fees are to be charged must still be specified in an order subject to the affirmative procedure and the amount or rate of the fee would also still be specified in regulations. But, those regulations would in all cases be subject to the negative procedure even where the amount or rate of the fee exceeds the costs of provision. However there is a significant difference in that under clause 62 the affirmative order is required to specify how the fee is to be calculated and the maximum amount or rate of the fee that may be specified in the regulations”.

The report continues:

“The Home Office argues in its memorandum that it is appropriate for fees regulations under clause 62 to be subject to the negative procedure where the amount or rate exceeds that required to meet the cost of provision, because the upper limit for the fee will have been specified in the affirmative order under clause 62”.

Although the committee agreed with the Government’s reasoning, it wanted to,

“draw these provisions to the attention of the House because … this represents a reduction in the level of the parliamentary scrutiny applied to immigration and nationality fees where the amount of the fee exceeds the cost of provision”.

Can the Minister put the Government’s reason for this clause on the record, and expand on it, because I am not 100% clear on the reason? The Minister has been very clear when he has spoken in debates about his commitment to scrutiny, so I am sure that he will understand the concerns about any reduction in scrutiny on such issues.

Clause 66 deals with transitional and consequential provisions. Subsection (2) confers power on the Secretary of State by order to,

“make such provision as the Secretary of State considers appropriate in consequence of”,

the Bill, while subsection (3) provides,

“an order under subsection (2) includes provision amending, repealing or revoking any enactment”.

Our Amendment 81B would leave out subsection (3). Once again, it is a probing amendment and emanates from the report of the Delegated Powers and Regulatory Reform Committee report, which said—and I share its concerns—that the wording of subsection (3) is very wide. It said that it is,

“not explicit as to whether it is limited to a power to amend an enactment passed or made before or in the same Session as that in which the Bill is enacted, whether it includes a power to amend an enactment passed or made after that, or indeed whether it includes a power to amend an enactment contained in the Bill itself”.

The Government responded to the committee saying that it was,

“not intended to extend to a power to amend future legislation”,

and that the reference to any enactment cannot be read as applying to the Bill itself. I seek clarity on that, because the Minister said that the Government were considering amending subsection (3) to extend the power to amend the provision of the enactment passed after the Bill but in the same Session.

I am grateful to the Minister for sharing that letter with us. Our reason for tabling the amendment is to get the Government’s rationale on record. Has he considered the committee’s recommendation that this be made explicit in the Bill? Is he intending to bring anything forward? The Government said that they thought that it was clear and the committee said that it did not think that it was. If the Government are considering an amendment, surely now would be the time to bring it forward, given that the issue has been raised already. I am curious as to whether the Minister thinks that an amendment should be brought forward and if he is considering doing so at a later date. It is clarity that I am seeking there.

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[Baroness Smith of Basildon]

My Lords, I appreciate that that point is not part of the deliberations today on the Bill but it was appropriate for the noble Lord, Lord Ramsbotham, to address it given the concerns raised. I am glad the Minister has offered to place an answer in the Library if he is able to. I suggest if he is going on a removal flight that people do not know he is on there and he goes incognito. That is the best way to understand how these matters are carried out. I hope that is the case.

I turn to the amendments. On transitional provisions and arrangements regarding health, perhaps I should have been clearer. I apologise to the noble Lord if I was not. The reason for raising the matter here is that I am not clear from what he said in his previous responses when I raised this if any transitional provisions are required for the transitional arrangements. He referred to the arrangements between two departments—the Department of Health and the Home Office. Where I am confused and do not understand this is, as I said, in the real-life implications and workability. Will Home Office computers be able to talk to and share information with Department of Health computers?

My recollection as a government Minister of various meetings on Cabinet committees on this is that there must be some kind of process, agreement or even legislation to ensure that that happens. I am not clear if that has been agreed from what I have seen so far. It does not seem to be in the Bill and nobody is able to tell me how the process would work where, for example, somebody who has a visa and is in the country legally but has not paid the surcharge turns up for treatment. How will the health service know that they are legally in the country but just have not paid the surcharge? They came into the country and took their visa before the surcharge was in place. If that information can be provided only by sharing information between the computers of the two departments, how will that be done, have the arrangements been put in place and is legislation needed? If not, something will be needed in transitional provisions, presumably in this Bill, to undertake that. That is what I am trying to get to. I need to understand how it will work in practice.

[Lord Taylor of Holbeach]

All I can say at the moment is that if that were needed in transition it would be in the Bill. I have been party to some of the discussions that have taken place. Indeed, it is intended that there should be an exchange of information between the two departments. If the noble Baroness does not know how that will happen, I hope I am in a position to inform her. This matter does not need legislation; it is one of good administration. My noble friend Lord Howe and I both share the determination that this should be properly done because it is important to make sure that the health service is not in any way impeded by measures that we enact in this Bill.

[Baroness Smith of Basildon]

My Lords, I do not for one moment question the determination of the noble Lord and the noble Earl, Lord Howe, to make this work but when we pass legislation we need to understand—as I said at the very beginning, at Second Reading—the evidence base for something being brought forward and the workability of it; that is, if what is sought can actually be achieved and the implications, including unintended consequences. I really want to understand this. If the noble Lord could undertake to write to me with further information about how this will work in practice that would be really helpful.

I raised two other points in speaking to my amendments. It was helpful to have the response on the record. I take it from what the Minister said that there probably will not be a government amendment coming forward on the points I raised on my second amendment, but if there was it would be helpful to have very early notice of that. I would have expected that today. On the other issue, he made the point on fees. This is a reduction in scrutiny. I understand the Government’s reasoning that under Clause 62 a higher level is set and it cannot go above that but in terms of setting the amount, specifically where the fee for the visa is higher than the cost of the provision, we experience a loss of scrutiny. That is now on the record and I am grateful to the noble Lord for accepting that, even though I understand the reasons. With that, I beg leave to withdraw my amendment.

Amendment 79F withdrawn.

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[Baroness Smith of Basildon]

My Lords, this is an interesting and useful amendment that the noble Lord, Lord Avebury, has brought before us. If the only objection from the Government in the other place was that they thought it was out of scope and that it could not be brought forward, it is clearly no longer out of scope as it has been brought forward. I hope that the Minister might take the advice of my noble friend and that, if the Government are not able to accept this amendment or bring it back, they will explain why. I really hope that there can be a positive resolution to this.

[Lord Taylor of Holbeach]

I am grateful to my noble friend Lord Avebury for raising this matter and to the noble Baronesses, Lady Lister of Burtersett and Lady Smith of Basildon, for supporting it because we are well aware of the issues faced in acquiring British citizenship by those whose parents never married. We agree that this is an anomaly which deserves to be addressed. Having understood that nationality matters were outside the scope of the Bill, we were considering whether a measure covering this could be drafted as a government handout Bill for the next Session. I understand that had this amendment been tabled in another place, it would indeed have been ruled out of scope. However, this House has different rules on relevance and therefore it is appropriate for us to debate the matter.

I say to the noble Baroness, Lady Lister, that while I cannot give her any numbers, she is quite right that this is not about numbers but about whether to do it or not. That is the position the Government are coming from.

As my noble friend Lord Avebury pointed out, the law changed on 1 July 2006 to enable British citizen fathers to pass on their citizenship to a child where the parents were not married. This was not made retrospective, however, because it could have created difficulties for those affected in relation to any other citizenships that they held. For example, some countries do not allow dual nationality, as some noble Lords will know. Since 1987, the Secretary of State has exercised discretion in relation to those born to an illegitimate father. Discretion is exercised under Section 3(1) of the 1981 Act to enable the registration of children born before 1 July 2006 who are the illegitimate children of British citizens or settled fathers. Registration can take place if the Home Secretary is satisfied about the paternity of the child, if all those with parental responsibility have consented, if the good character requirement is met and, had the child been born to the father legitimately, if he or she would have had an automatic claim to British citizenship or an entitlement to registration.

However, this exercise of discretion under Section 3(1) applies only to those who are minors at the date of the application for British citizenship. There is no power in law to register as a British citizen a person who was born illegitimately to a British citizen father before 2006 and who is now an adult. We accept that this creates a lacuna and that those who were born illegitimately to British citizen fathers are at a disadvantage compared with those whose parents were married.

I cannot accept my noble friend’s amendment as currently drafted because while this provision covers any person who would have been a British citizen had his parents been married, we think that it should be set out clearly exactly who should benefit from such a change in the law. In addition, other matters would need to be considered such as good character, which persons registered under this provision should be British citizens by descent and what additional measures should be included for those who might apply when under the age of 18. These are technical matters which need to be considered in amending the legislation. I am afraid that I must resist the amendment as it stands but I am happy to commit to taking it away, with a view to considering urgently whether the Government could prepare a suitable amendment for tabling at Report. I hope that amendment would have the support of the House, should it come back, and I therefore ask my noble friend to withdraw his amendment and its proposed new clause.

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Is this actually what we think should become a matter for administrative review? I beg to move.

[Baroness Smith of Basildon]

My Lords, shall speak briefly on these amendments because I have listened to the noble Baroness, Lady Hamwee, quite carefully on them and I share some of the concerns that she raised. Concerning Amendment 87ZA, can I just be 100% sure that I have understood it correctly? The current position is that once a decision is taken not to extend or revoke leave, that leave is extended on the same terms and conditions during the period provided for lodging any appeal or while the appeal is pending. However, the Bill would remove that provision. The noble Baroness is nodding at me, so it seems I have understood it correctly.

[Baroness Hamwee]

That is as I understand it. Possibly like the noble Baroness, I have had some difficulty following this around the course.

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[Baroness Smith of Basildon]

I share that difficulty. However, what the Bill does has quite significant implications. If I take the example of somebody who is employing an individual whose leave is revoked and who then appeals, the employer has the opportunity to continue to employ that person quite legally. What is being proposed here seems to make the employer commit an offence, because from the moment that leave is revoked, even if the individual is appealing against it, they are no longer allowed to employ that person. What I come back to on a number of areas in the Bill is the issue of unintended consequences—not thinking through from point A to point B. I may have it completely wrong, and I am happy if I have, but I would like some clarification on that point.

On the other two points, the Minister will be aware of how concerned we are about the Government’s proposals on appeals and administrative reviews. I fail to understand why the Government do not want to have the Independent Chief Inspector of Borders and Immigration reviewing decisions taken in this case. The noble Baroness asked him to confirm that. An explanation would be quite helpful. The same is true on Amendment 87ZF.

As with so many proposals the Government bring forward, I would like to understand the evidence behind the decisions being taken and an assurance that they understand and know the consequences, including the unintended consequences, of such measures.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, I thank my noble friend for moving this amendment and confessing, as did the noble Baroness, Lady Smith, to having difficulty getting her head around some of this. Having had this landed on me very recently, I have similar issues.

[Baroness Smith of Basildon]

It makes no difference. We spent weeks on this.

[Lord Wallace of Tankerness]

I am advised that it is not correct that this Bill means that leave does not continue where an application has been made in time. I think there is a double negative in there. My understanding is that Section 3C of the Immigration Act 1971 provides that where someone makes an application for further leave while they have existing leave and that the existing leave expires before the application for further leave is decided, their existing leave is extended on the same terms until that further application is decided and any appeal against its refusal is no longer pending. That is the existing position. Section 3D of the 1971 Act makes the same provision where someone has existing leave which is revoked, extending leave while they can appeal against the revocation. Schedule 9 to this Bill amends Sections 3C and 3D so that they extend leave also while an administrative review can be brought or is pending. I hope that is helpful. No doubt the noble Baronesses will want to consider it. I think that is the accurate position.

Nothing in the Bill prevents people making protection or human rights claims. We are committed to protecting such fundamental rights but equally, as has been explained on numerous occasions in Committee, we also seek to prevent abuse of the system and to create an improved process. Our concern is that the amendment that my noble friend has moved would undermine both these aims.

Extending leave because a protection or human rights claim has been made following an unsuccessful administrative review would create a strong incentive to make such claims. This would undermine the greater efficiency of the appeals framework in this Bill. There would be an advantage in making a protection or human rights claim just before leave extended under Section 3C of the Immigration Act 1971 expired, even after an appeal at the First-tier Tribunal has been decided. This would create a sequential process where the further claim and any appeal are considered after the other claim has been decided rather than at the same time. It would mean that leave is extended on current conditions for a worker, even when that worker has first sought an extension of leave as a worker and then decides he no longer wants to be in the UK to work but rather wishes to claim asylum. We do not believe that that consequential inconsistency is right.

Inserting new Section 3F into the Immigration Act 1971, as proposed by Amendment 87ZA, would create duplication. Existing Section 3D of the 1971 Act already provides that where leave is revoked, the leave will continue while any appeal against revocation is brought.

I wish to make the important point that, as I said at the outset, there is nothing in the Bill that seeks to stop or prevent people making protection or human rights claims. The Home Secretary will consider and decide any human rights claim made to her and will not remove any person while that claim remains undecided, irrespective of whether they have leave. I hope that is a reassurance that there will not be a removal while a claim remains undecided.

Amendment 87ZE queries the necessity of a consequential appeals amendment. We believe that the consequential amendment is necessary. Schedule 9 repeals the provision establishing a monitor for entry clearance cases with a limited right of appeal. This monitor role is now performed by the independent chief inspector under Section 48 of the Immigration, Asylum and Nationality Act 2006. However, the Bill provides that there will no longer be any entry clearance cases with a limited right of appeal, and therefore Amendment 87ZE would retain an otherwise redundant provision.

With regard to Amendment 87ZF, the Bill simplifies the appeals framework and removes “not in accordance with the law” and “different exercise of discretion” as grounds on which appeals can be brought. Amendment 87ZF would reinstate these as reasons for allowing an appeal, although they are not grounds on which an appeal can be brought. Noble Lords will recall from when we debated Clause 11 that the grounds of appeal under that clause are that a decision breaches the UK’s obligations under the refugee convention to those entitled to humanitarian protection, or is unlawful under the Human Rights Act. These are the relevant grounds for challenging refusals of protection or human rights claims, and, in considering them, the tribunal is considering whether the decision was in accordance with the law. That is the important point in the appeal. Similarly, the UK’s obligations to asylum seekers entitled to humanitarian protection or under the Human Rights Act are not discretionary. There is therefore no exercise of discretion for the tribunal to consider in those appeals that come before it.

I hope that in the light of this explanation and these reassurances, my noble friend will feel able to withdraw her amendment.

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[Lord Deben (Con)]

My Lords, I suddenly thought that the court which heard St Paul declare himself a Roman citizen must have been just as surprised as we are at some of the people who claim to be British citizens, both by name or background and present place of abode. Your Lordships will remember that St Paul made an important and entirely supported point. Having declared himself a Roman citizen, he was treated in a different way. We have an important point here, and I commend my noble friend Lord Avebury in raising it. This is a very difficult area, not least because the exemplars are not ones that are easily taken to the heart of the broad mass of the British people. That means that those people should be particularly able to call upon this House.

I live in a house which was previously occupied, a long time ago, by the man who won the War of Jenkins’ Ear—the Battle of Porto Bello. At that time we thought that British citizenship was of enormous importance. People who found it quite hard to explain how they had managed to become British citizens were still supported, sometimes for pretty dubious reasons.

I hope that my noble friend will consider very carefully the points which the noble Lord has made. We live in a world in which statelessness is one of the most terrible things that can befall anyone. If you do not belong and cannot come to belong, you are placed in an impossible position. In a sense I welcome that this is so peculiar. This so special a situation which has been adumbrated, and the others around it are small in number and, as I suggested, do not affect many people or raise their sympathy in this country. Indeed, I fear that they could easily be used by some organs of the press as another way to beat the Government on their immigration policy. That makes it all the more important that we are very serious about this.

I therefore hope that my noble friend, in expressing his view on this amendment, will reassure the House that we do three things which are basic to British justice. First, we will recognise that if we have granted citizenship, or if someone has citizenship, we will defend it, and do so even though it be to our own hindrance. Secondly, we will not continue, unless there is some really good reason, the unacceptable position in which we say to somebody, “We will take away your citizenship but will not tell you why”. I find that unacceptable. I can see why people do that, but the circumstances must be most extreme before it is reasonable and acceptable. Thirdly, to take away someone’s citizenship, it is not reasonable to say that you assume that they can get another country’s citizenship. It is only reasonable to say that you know that they have another citizenship; anything less than that is wrong. It may not be convenient, but it is not right.

We have been the signatory to and the driver of much of the international law that seeks to reduce statelessness to its minimum. I fear that in this particular case, we may, for very good reasons—in seeking to close loopholes and make neat what is essentially a not very neat kind of law—do something which will do great injustice to a very small number of people. However, it is none the less injustice if it affects but one.

[Baroness Smith of Basildon]

My Lords, I will be brief, because I do not want to repeat the lengthy debate we had on this issue on Monday evening. That the noble Lord, Lord Avebury, has raised this again tonight, as well as the comments made by the noble Lord, Lord Deben, indicates the strength of feeling and the very grave concerns about the Government’s provisions, which would make stateless some people in this country who are currently citizens. The issue was never, as the noble Lord perhaps thought on Monday, about the withdrawal and deprivation of citizenship, but about the consequences of making people stateless, not just for that individual but for public safety, national and international security. The noble Lord, Lord Avebury, made the point about somebody either being trapped, stateless, in this country, and our obligation to that individual, or somebody being isolated overseas, with the implications that that has for the security of that country and our relationship with it.